Public Access Counselor sides with city of South Bend

PAC says city released enough about demotion of chief.

May 30, 2012|By TOM MOOR | South Bend Tribune

SOUTH BEND -- Indiana's Public Access Counselor ruled this week the city of South Bend did not violate the Access to Public Records Act in response to a formal complaint filed by The Tribune seeking more information as to why former police chief Darryl Boykins was demoted.

The Tribune filed the complaint against the city on April 26, claiming three news releases sent in late March regarding Boykins' demotion did not provide an appropriate "factual basis," required by Indiana Code, as to why the former chief was demoted. The Tribune claimed it only made a mention of a federal investigation into the recording of phone calls but nothing Boykins, specifically, did wrong.

The city responded to The Tribune's complaint by claiming the demotion took place privately, the meeting was not recorded and no further writing existed.

In an advisory opinion released this week, Public Access Counselor Joseph Hoage, based on prior cases, ruled that a public agency is not required to create a record containing a certain minimum amount of information. Instead, Hoage ruled, the city is only required to provide to the public access of records which already exist.

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"That's the way the law is being interpreted by our office," Hoage said.

When asked if public agencies can demote and fire people without any recordings of it, he said that's possible in some cases.

"They would not be doing anything wrong because there is no requirement to create a record in response to a request," he said.

Hoage added that while an agency is not required to create a record, it may if it chooses to. The city did not in this case.

Hoage said the city has since provided enough information regarding the factual basis for Boykins' demotion when Mayor Pete Buttigieg spoke with the Tribune's editorial board on May 14. In that interview, Buttigieg said he demoted Boykins to captain and fired 911 communications director Karen DePaepe so they would avoid facing possible criminal charges in relation to the phone recordings.

The city contends that the mayor alone has the power to appoint and remove the police chief, and he chose to take such action privately in this case without creating a record.

Hoage had said in an interview in April that the city should "clarify" the reason Boykins was demoted.

"You may not be able to pull it directly from a record, but you still have to provide that information," Hoage previously said. "They're required to provide some sort of factual basis."However, Hoage said Wednesday that even if the city hadn't released more information in May, he likely would have sided with the city based on the three news releases alone.

"If you sum it all up you would be able to know that the police chief was demoted on this date for these variety of reasons," he said.